CHATTU RAM Vs. SITA RAM

JUDGEMENT

(1.) Admittedly one Bhagwan Patdey had obtained plot No. 99/12 from Municipal Board on 8th July 1960. He constructed his house towards west and had left about 8 Dhurs land towards east as Sahan. On 24-4- 1931, he leased out open land to one Maheshia on monthly rent of Rs. 1. 25. She died thereafter and her husband Sukar Gonda con tinued in possession over it. On 4-1 1-1946 Sukar Gonda sold land to one Ghenawan who transferred it in 1952 in favour of plaintiff respondent. Appellant is brother of Ghenawan. According to respondent appellant's father had taken the land on rent therefore he was licensee and as licence has been terminated he was liable to be ejected. Earlier respondent had filed suit treating respondent's father as tenant but it was dismissed as he failed to prove contract of tenancy. Appellant contested the suit and claimed to be in possession for more than 1 2 years. Plea of res judicata, limitation and order 2 rule 2 C. P. C. were also raised. The trial Court dismissed the suit but the trial Court held that the appellant appear to have taken the land from Ghena wan therefore his status was of licensee. Lengthy arguments were advanced by learned counsel for parties on the correctness or otherwise of the finding recorded by appellate Court that appellant was licensee. The learned counsel for respondent tried to support the finding by urging that the finding whether appellant was licensee or not is a finding of fact which is not liable to interference by this Court in Second Appeal. The learned counsel urged that in absence of any specific ground or certificate given by learned counsel for appellant it was not open to him to challenge this finding. It is however not necessary to examine whether the finding on question of licence is well founded or not as on the finding record ed by two Courts below the title of the plaintiff- respondent to the land in dispute is not established. Both the Courts below have found that lease in favour of Maheshia by Bhagwan Pandey and sale in favour of G'uenawan by Sukar Gonda were invalid, Consequently no title passed to the lessee or transferee in pursuance of these documents. It has further been found that Maheshia and thereafter her husband having continued in possession over the land under invalid lease acquired right by adverse possession. Sukar Gonda on this 6nding became owner of the land in dispute but that does not help the respondent as the sale deed executed by Sukar Gonda in favour of Ghanewan has also been found to be invalid. Ghenawan purchased the land in 1946. As the sale deed was invalid no title vested in him. He transferred the land to respondent in 1952, that is before he could mature any title by adverse possession. Consequently respondent did not acquire any title which could form basis for filing the suit. It has been argued by learned counsel for respondent that tacking pos session of two trespassers is well recognised. According to him the adverse possession of Maheshia and Sukar Gonda should be tacked with Ghenawan and he should be deemed to have acquired title by adverse possession. And even if the sale deed executed by Sukar Gonda was invalid the sale deed executed by Ghenawan in favour of respondent created vilid title on which the suit was maintainable. It is difficult to appreciate the argument. It having been found that Maheshia was in possession under an invalid lease and after her death her husband, who continued in the same capacity and acquired right after twelve years by adverse possession which, matured into title he could not be deemed to continue in adverse possession which could be tacked with Ghenawan. Learned counsel relied on Union of India v. Sri Ram Bohra and others A. I. R. 1965 S. C. 1531, and Sajjad Hussain v. Qurban Ali Beg A. I. R. 1926 All. 697. In support of the principle of tacking of possession of trespassers. The principle cannot be disputed. But it cannot apply in a case where one of the tres passer acquired title by lapse of time and ceased to be trespasser. Acquisition of title is by operation of law. It cannot be claimed that although by lapse of time Sukur Gond acquired title yet he should be deemed to be trespasser and by tacking his possession to Ghenawan he should be held to have acquir ed title. Of course the principle of tacking was available between Maheshia and Sukur Gond but once it matured into title possession as trespasser came to an end. In the result this appeal succeeds and is allowed. The decree and judgment of the lower appellate Court is set aside and the plaintiff's suit is dismissed. Parties shall bear their own costs. .